This article clarifies, supports and elaborates upon NJIT’s Sexual Misconduct Policy for Students.

NJIT is an institution of higher education and a community dedicated to learning and the advancement of knowledge. NJIT expects and requires the behavior of its students, faculty, staff, officials, vendors, visitors and anyone else with a direct link to NJIT to be compatible with its high standards of scholarship and conduct. NJIT is committed to protecting the university community, the rights of its members, and to cultivating and sustaining a positive living and learning environment for all students. Thus, NJIT does not discriminate on the basis of sex in its educational programs and does not tolerate inappropriate behaviors that compromise our constituents' ability to pursue their legitimate activities. These inappropriate behaviors include specifically sexual misconduct, domestic violence, dating violence and stalking.

The U.S. Department of Education, and its office for Civil Rights (OCR), emphasizes the importance of providing all students with an educational environment free from discrimination. Sexual misconduct of students interferes with students' rights to receive an education free from discrimination and, in some instances, may be a crime. Title IX of the Education Amendments of 1972 (Title IX) and corresponding regulations, prohibit discrimination on the basis of sex and/or gender in educational programs or activities operated by recipients of Federal financial assistance. In addition, NJIT is committed to compliance with other corresponding legislation, including the Clery Act, the Violence Against Women Act, and the Campus Sexual Violence Elimination Act.

NJIT will make available to students and employees ongoing training and other educational opportunities regarding the prevention of sexual misconduct, domestic violence, dating violence, and stalking. Specific training programs will be identified that will focus on Title IX and corresponding legislation. NJIT takes any violation of sexual misconduct, domestic violence, dating violence, and stalking very seriously. A student who violates this policy will be subject to disciplinary action as outlined in the NJIT Code of Student Conduct, which includes expulsion. Employees who violate this policy with respect to students are subject to discipline up to and including termination. NJIT strictly prohibits retaliation against anyone who has reported an allegation of sexual misconduct, domestic violence, dating violence and/or stalking or who has assisted or cooperated in an investigation into the allegation.

Section 1. Reporting

Any member of the NJIT community (including visitors and non-affiliates) may make a report of sexual violence, gender discrimination, domestic violence, or sexual harassment to any University official. The Dean of Students and Campus Life Office/Title IX Coordinator will receive the report and begin an investigation.

Section 2. Investigation

The Dean of Students and Campus Life Office, or designee, will conduct its investigation in a confidential manner to the extent practicable and/or permitted by law. However, the results of the investigation and fact-finding initiatives may also be utilized by other offices, including but not limited to Human Resources, Residence Life, Public Safety, etc. The parties and witnesses are expected to cooperate fully in the investigation, and maintain and preserve the confidentiality of the investigation. In order to protect confidentiality, hearings shall be closed to members of the campus community and to the public.

Section 3. Confidentiality and Privacy

Even New Jersey Institute of Technology offices and employees who cannot guarantee confidentiality will maintain the privacy of the person making a report to the greatest extent possible. The information provided to a non-confidential resource will be relayed only as necessary for The Dean of Students and Campus Life Office/Title IX Coordinator to investigate and/or seek a resolution as required under Federal and State law, or as requested by the victim, or to maintain the safety of the campus community. New Jersey Institute of Technology will limit the disclosure as much as possible, even if the Title IX Coordinator determines that the request for confidentiality cannot be honored.

Section 4. Amnesty

The health and safety of every student at the New Jersey Institute of Technology is paramount. NJIT recognizes that students who have been drinking and/or using drugs (whether such use is voluntary or involuntary) at the time that violence (including but not limited to domestic violence, dating violence, stalking, or sexual assault) occurs may be hesitant to report such incidents due to fear of potential consequences for their own conduct. NJIT strongly encourages students to report domestic violence, dating violence, stalking, or sexual assault to University officials. A bystander acting in good faith or a reporting individual acting in good faith who discloses any incident of domestic violence, dating violence, stalking, or sexual assault to NJIT officials or law enforcement will not be charged with “personal use” violations of the NJIT alcohol and/or drug policy occurring at or near the time of the alleged incident of domestic violence, dating violence, stalking, or sexual assault.

Section 5. Title IX Coordinator

The Title IX Coordinator is responsible for the implementation of the Title IX program for NJIT and for coordinating NJIT's compliance with the regulations of Title IX, the Clery Act, the Violence Against Women Act, and the Campus Sexual Violence Elimination Act. The goal of the program administered by the Title IX Coordinator includes the prevention of any student being excluded from participation, being denied the benefits of or, being subjected to discrimination in any educational program or activity at NJIT. These responsibilities include monitoring NJIT's Sexual Misconduct Policy for Students, which includes publicizing the Title IX Coordinator's contact information, assuring dissemination of the grievance procedures, investigating and/or overseeing the investigation of complaints, and continuous monitoring of overall NJIT activities for compliance with Title IX and corresponding legislation.

NJIT's Title IX Coordinator will oversee all investigations of student sexual misconduct, domestic violence, dating violence and stalking complaints, regardless of who they are filed with and/or in which NJIT office they are filed.

Section 6. Sexual Misconduct Definitions and Examples

Sexual misconduct, which can occur in many forms, is discrimination on the basis of sex and/or gender, and may occur between people of the same or opposite sex, or who identify as LGBTQ, and it is prohibited. Complainants will be made aware of their Title IX rights and available resources.

Examples of sexually harassing behaviors may include, but are not limited to, those listed below

a. Sexual Harassment

No student shall perform any acts that are considered to be sexual harassment. Sexual harassment encompasses unwelcome sexual advances, unwelcome requests for sexual favors or requests for sexual favors in exchange for some benefit, and/or verbal or physical conduct of a sexual nature.

Sexual harassment occurs when:

Submission to such conduct is made either explicitly or implicitly a term of or condition of any individual’s employment or education; or submission to or rejection of such behavior by an individual is used as the basis for employment or educational decisions affecting the individual.

A behavior is sufficiently severe and pervasive to interfere with any individual’s work or educational performance, or create an intimidating, hostile, or offensive work or educational environment. Prohibited conduct includes, but is not limited to, unwelcome sexual communication, touching, and non-consensual sexual contact, including but not limited to sexual touching, intercourse, and violence.

Examples of sexual harassment include, but are not limited to:

Comments of a sexual or salacious nature

Exploitation

Graphic or sexually suggestive comments about an individual's attire or body

No student shall perform any acts that are considered to be non-consensual sexual contact. Non-consensual sexual contact is any contact of a sexual nature which is unwanted or unwelcome. Sexual contact with another person without consent is prohibited.

Non-consensual sexual contact may include but is not limited to:

Attempted penetration

Brushing up against or rubbing another in a sexual manner

Fondling

Grabbing

Kissing

Pinching

c. Non-consensual sexual intercourse and/or penetration

No student shall perform any acts that are considered to be non-consensual sexual intercourse and/or penetration. Non-consensual sexual intercourse and/or penetration is any sexual penetration or intercourse that is unwanted or unwelcome. Sexual contact with another person without consent is prohibited.

Oral sex or attempted oral sex, or the insertion of a foreign object into the vagina,urethra, penis or rectum of another.

This also includes what may be referred to as sexual assault, which is also commonly known as “rape,” whether forcible, or non-forcible. For parties found responsible of violating the sexual assault policy, available sanctions are suspension from NJIT with additional requirements and expulsion from NJIT.

No student shall perform any acts that are considered to be non-consensual physical violent contact during consensual sexual contact. Prohibited conduct includes but is not limited to slapping, punching, choking, burning or otherwise intentionally causing or attempting to cause physical harm without consent of a partner.

e. Dating Violence

No student shall perform any acts that are considered to be dating violence. Dating violence is committed by a person who is or has been in a social relationship of a romantic or intimate nature with the complainant and where the existence of such a relationship shall be determined based on consideration of the length of the relationship, the type of relationship, and the frequency of interaction between the persons involved in the relationship.

f. Domestic Violence

No student shall perform any acts that are considered to be domestic violence. Domestic violence is any violent act committed by a current and/or former spouse and/or intimate partner of the victim. An intimate partner includes persons legally married to one another; persons formerly married to one another; persons who have a child in common, regardless of whether such persons are married or have lived together at any time, couples who are or have lived together. This policy includes same sex couples.

g. Stalking

Stalking is engaging in a course of conduct directed at a specific person that would cause a reasonable person to fear for his/her safety or the safety of others or suffer substantial emotional distress. No student shall perform any acts (two or more) that directly, indirectly or through third parties harass, annoy, threaten, intimidate, cause fear, or alarm another person or persons. The term stalking means intentionally engaging in a course of conduct, directed at a specific person, which is likely to cause a reasonable person to fear for his or her safety or the safety of others or cause that person to suffer substantial emotional damage. Examples include, but are not limited to, repeatedly following such person(s), repeatedly committing acts or behaving in a manner that alarm, cause fear, or seriously annoy such other person(s) and that serve no legitimate purpose, and repeatedly communicating by any means, including electronic means (cyberstalking), with such person(s) in a manner likely to harass, intimidate, annoy, or create a nuisance or alarm.

Section 7. Consent

Consent is a mutual and voluntary agreement to engage in a sexual activity, which is informed and freely given. Consent once given may be withdrawn. If coercion, intimidation, threats and/or physical force are used, there is no consent. If an individual is mentally or physically incapacitated or impaired so that the individual cannot understand the fact, nature, or extent of the sexual situation, there is no consent, including whether the incapacity is due to alcohol or drug ingestion, sleep, unconsciousness, or because of an intellectual or other disability that prevents the individual from having the capacity to give consent. Silence does not constitute consent. Past consent of sexual activities does not imply ongoing future consent; nor does consent to engage in one type of sexual activity imply consent for various other acts of sexual activity. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another person.

a. Non-consent/ Limitations of Consent

The age of consent in the State of New Jersey is 16 years old.

Prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act or sexual activity at a later date and/or time.

Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with any other person.

Consent is required regardless of whether the person initiating the act is under the influence of drugs and/or alcohol.

Consent cannot be given when it is the result of any coercion, intimidation, force, or threat of immediate or future harm.

Consent cannot be given when it is the result of the use of physical intimidation to secure compliance with sexual activity.

Consent cannot be given when a person is incapacitated, which occurs when an individual lacks the ability to knowingly choose to participate in sexual activity

Incapacitation may be caused by:

A physical or mental condition, infirmity or disability that limits informed decision making

The lack of consciousness or being asleep

Depending on the degree of intoxication, someone who is under the influence of alcohol, drugs, or other intoxicants (whether involuntary or voluntary) may be incapacitated and therefore unable to consent. Intoxication or impairment of the Respondent is no defense to charges of sexual misconduct.

b. Revocation of Consent

Consent may be initially given, but it may be revoked/or withdrawn at any time, either verbally, through physical resistance, or by losing consciousness. When consent is withdrawn or cannot be given, sexual activity must stop. Failure to cease sexual contact and/or activity promptly in response to a withdrawal of consent is prohibited non-consensual sexual contact. If coercion, intimidation, threats and/or physical force are used, there is no consent. If an individual is mentally or physically incapacitated or impaired so that the individual cannot understand the fact, nature, or extent of the sexual situation, there is no consent, including whether the incapacity is due to alcohol or drug ingestion, sleep, unconsciousness, or because an intellectual or other disability that prevents the individual from having the capacity to give consent. Silence does not constitute consent. Past consent of sexual activities does not imply ongoing future consent, nor does consent to engage in one type of sexual activity imply consent for various other acts of sexual activity. Consent to engage in sexual activity with one person does not imply consent to engage in sexual activity with another person.

Section 8. Sexual Misconduct Procedures and Resolving Complaints

1. Student complainant's rights

Any student who wishes to report an incident of sexual misconduct, domestic violence, dating violence, or stalking, whether the incident occurred on or off campus, shall have the following rights and options:

a. Go to Court to file a domestic violence complaint requesting a restraining order against the perpetrator, and/or an order directing the perpetrator to leave the student’s household, building, school, college or workplace.

b. Sign a criminal complaint with law enforcement for threats, assault and battery, or other related offenses.

c. Seek medical treatment; the NJIT Department of public Safety and/or the Title IX Coordinator will arrange transportation for the student to the nearest medical facility; NJIT Department of Public Safety is located on Summit Street and maybe contacted at 973-596-3116 for non-emergencies or 973-596-3111 for emergencies.

d. Request law enforcement to remain at the scene until the student’s safety is secured.

e. Request that law enforcement assist the student by transporting him/her to a safe place, such as a shelter, or a family or friend's residence.

f. Request the Title IX Coordinator to assist accommodations on campus, such as changing schedules, or other academic accommodation.

a. If a student is a victim of sexual misconduct, domestic violence, dating violence and/or stalking, or has witnessed any of the above acts, it is strongly encouraged that the event be reported immediately. A student may make the report to the Title IX Coordinator located in the Dean of Students and Campus Life Office on the second floor of the Campus Center, or the NJIT Department of Public Safety. Immediate actions that the complainant may request can be coordinated with the Title IX Coordinator’s office.

b. NJIT, through the Title IX Coordinator or designee shall conduct a prompt, thorough, and impartial inquiry into any reports of sexual misconduct, domestic violence, dating violence, and/or stalking and determine appropriate action to be taken. In the event that an investigation is initiated, the finding will be based on a preponderance of the evidence standard, meaning it will be determined whether it is more likely than not that the allegation of the misconduct occurred.

c. During the fact-finding, both the complaining student and the accused will have equal opportunity to impart any information, including verbal testimony, written documents, and supporting witnesses, in separate meetings before an investigatory determination is made.

d. The student bringing the complaint and the accused may each be assisted by an advisor of his or her choice. In any judicial hearing or disciplinary proceeding, the hearing administrator may accommodate any student(s) with concerns for the personal safety, well-being, and./or concerns regarding confrontation during the hearing by providing appropriate and equal accommodations in the hearing process as determined to be appropriate.

e. Regardless of whether or not a student chooses to make an official report, participate in NJIT's disciplinary process, or file a criminal complaint, the following lists resources that are available to the victim. No student is required to utilize these resources, but NJIT provides them to offer help and support. NJIT will make every effort in helping students reporting sexual misconduct to securing the assistance that they request.

f. The investigation and resolution of cases conducted at NJIT involving sexual misconduct, domestic violence, dating violence and/or stalking are maintained confidentially, subject to disclosure as provided in subparagraph (g). Information is shared internally on a need to know basis. Privacy of the records specific to the investigation is maintained in accordance with New Jersey law and the Federal FERPA Act (Family Educational Rights and Privacy Act of 1974). The release of information to comply with the timely warning provisions or the Clery Act will not include the names of the victims or information that could easily lead to a victim's identity.

g. At the conclusion of the investigative process, the complainant and accused will be informed of the outcome of the investigation, including the finding, sanctions that may have been imposed, and the rationale for the findings. The complainant and the accused should be notified as simultaneously as possible, and be advised of the appeal process as outlined in the NJIT Code of Student Conduct.

h. Victims of sexual misconduct are not required to report an incident to law enforcement authorities. A student wishing to officially report an incident of sexual misconduct with the Title IX coordinator, rather than law enforcement may do so by contacting the Title IX Coordinator.

i. Anyone with knowledge about an event of sexual misconduct is strongly encouraged to report it immediately to the Title IX Coordinator. All NJIT officers, deans, administrators, faculty, and other individuals who exercise, or who are perceived to exercise authority are required to report known incidents to the Title IX Coordinator immediately.

3. Training

The Title IX coordinator will identify and oversee the implementation of mandatory training for students, faculty, staff, and administrators that will focus on Title IX and corresponding legislation. These programs will be offered continuously throughout the year, and will include awareness education, prevention and risk reduction techniques, bystander intervention information, and recognition of warning signals.

4. Prohibition on retaliation

No member of the University community shall retaliate, intimidate, threaten, coerce or otherwise discriminate against a person who files any complaint, serves as a witness, assists or participates in a proceeding in any manner for violations under this section of the Code. Participants in any procedure involving an allegation of sexual misconduct who experience retaliation in a Title IX related matter should report the incident to The Dean of Students Office or Public Safety. Retaliation is a serious violation which may subject the offender(s) to sanctions, regardless of whether or not the original complaint has been substantiated.